Durham County Council v A & Ors [2025] EWFC 235 (B)

Case No NE24C50777[2025] EWFC 235 (B)
IN THE FAMILY COURT SITTING AT NEWCASTLE
Date 2 July 2025
Barras Bridge, NE1, Newcastle upon Tyne NE1 7PF
Before
HHJ STEPHEN SMITH
Between
Durham County CouncilApplicant
Mr J. Cottrell (instructed by the solicitor to the local authority) for ApplicantMs M. McNestry (instructed by GT Stewart Solicitors) for First RespondentMs L. Noblet (instructed by Chivers Solicitors) for Second RespondentMs I. Baxter (instructed by The Richmond Partnership) for Third RespondentMr Nixon (instructed by Ward Hadaway) for Children’s Guardian(representing the Fourth to Sixth Respondents)Hearing Hearing dates: 23 to 25 June 2025
Approved Judgment.............................HHJ STEPHEN SMITH

HHJ Stephen Smith:

[1]The Court is concerned with the welfare of three children: i) X, a girl born on 8 July 24, and now aged 11 months; ii) Y, a boy born on 5 October 2021 and now aged 3; and iii) Z, a girl born on 6 Oct 2016, now aged 8.[2]The mother of all three children is Msa. A. The father of X and Y is Mrb. B. Mr B is serving a lengthy sentence of imprisonment for serious offences against A. The father of Z is Mr C.[3]The local authority has applied for care and placement orders for X and Y, and for a child arrangements order for Z, to live with Mr C. Mr C also seeks a declaration of parentage in relation to Z. That application is unopposed.[4]Mr B also seeks a declaration of parentage in relation to X. It is opposed by Ms A.

Principal controversial issues

[5]The local authority’s case against Ms A and Mr B primarily relates to the significant domestic abuse Ms A has been subjected to in her relationships, her fluctuating mental health, substance abuse, and the risks posed by Mr B to her and their children, in light of his extensive criminal history and associates. There are no allegations against Mr C.[6]All parties agree that the local authority has established that the criteria contained in section 31(2) of the Children Act 1989 (“the 1989 Act”) are met in relation to the care given to the children by Ms A and, before his imprisonment, Mr B. All parties agree that care orders must be made for X and Y, and that a child arrangements order should be made in relation to C. The focus of these proceedings lies primarily in the welfare decisions that the court must now make concerning all three children (although two minor welfare allegations are disputed by Ms A). Until these proceedings, the children had been living together as a family group under the care of Ms A.[7]Pursuant to an interim care order made by HHJ Hardy on 11 November 2024, X and Y were placed into agency foster care, and Z was placed into the care of Mr C.[8]On 21 February 2025, HHJ G Matthews KC granted Mr C parental responsibility in respect of Z. Mr C’s parenting of his daughter is to be commended. He has been committed to, and has engaged with, these proceedings. His parenting has been positively assessed. He has a respectable job and a supportive partner and family. He is able to provide a safe and stable home environment for Z. Everyone agrees that I should make a child arrangements order in his favour. I have no hesitation in doing so. I explain why below. The care plan for sibling contact, and Mr C’s role in that respect, is addressed below. Mr C also seeks a declaration of parentage in relation to Z.[9]Against that background, the remaining principal controversial issues to be determined are: i) Whether to make a placement order for X and Y, as sought by the local authority, or, alternatively, whether to make an order for their long-term fostering, as sought by their mother. Mr B does not actively oppose the making of a placement order. Ms A does. ii) Whether to grant a declaration of parentage to Mr B in relation to X. Mr B has parental responsibility for Y but not for X, and until relatively recently his parentage of her was in doubt. It is now common ground that he is X’s father. Ms A’s case is that I should not make such an order; the father is a violent and dangerous man and seeks the declaration as part of his ongoing plan to manipulate and control the mother.[10]It is also necessary to determine the two disputed welfare allegations. Para. 2(e) contends that Ms A’s attendance at family time has been inconsistent. Para. 2(f) contends that she has failed to engage consistently with professionals, having attended only two out of six parenting sessions.[11]The care plan for X and Y is for placement orders to be made. For Z, it is to continue to live with Mr C, with the protection of a child in need plan for three months.[12]The post-adoption care plan for X and Y is for ongoing letterbox contact with Ms A. Mr B will be invited to submit letterbox contact with X and Y, but the correspondence will not be passed on until the children are old enough to understand their life story. Z is to have twice yearly contact with X and Y in the form of a meaningful activity, which Mr C is willing to facilitate.

Factual background

[13]In October 2024, a referral was made to the police that Mr B had sexually assaulted Y. Z gave an ABE interview to the police in which she described Mr B kicking Y against a wall and taking him into a different room where she could hear her little brother screaming. Those allegations led to a criminal investigation against Mr B, but no charges in relation to those matters were pursued on public interest grounds, in light of the remaining criminal allegations against B, and his subsequent lengthy sentence of imprisonment, as set out below.[14]Ms A was later supported into a refuge with the children. Concerns were later raised by professionals about her erratic presentation. Information was received that she had been using cocaine whilst the children were in her care. The children were taken into police protection on 8 November 2024, the local authority issued proceedings on 11 November 2024, and interim care orders were granted the same day. It was at that stage that Z was placed to live with C.[15]In April 2025, Mr B was sentenced to a substantial double figures sentence of imprisonment arising from serious offences of violence and sexual violence committed against Ms A (I omit the details to avoid jigsaw identification of Ms A, who enjoys lifelong anonymity under the Sexual Offences (Amendment) Act 1992). Mr B raped Ms A and sexually assaulted her in other ways on several occasions. He used an offensive weapon on her, requiring her to undergo reconstructive surgery. The suffering Ms A has been subjected to is quite simply unimaginable. She has had to endure the most horrific abuse, repeatedly, over a period of years.[16]Despite all of this, the warmth of Ms A’s affection for her children is not in question. Her love for them, competing as it does with the impact of the deep trauma she has suffered, is clear. That was plain to me from her time spent in the court room, and her emotional presentation throughout the proceedings. There is no doubt that this is a mother who deeply loves all three of her children. She seeks a resolution to these proceedings that preserves the possibility of her being able to resume family life with them in due course. She has not given up. She wishes to persevere. It is that determination which lies at the heart of her position in these proceedings, namely an order for long term fostering, to which I shall return. The law Orders under section 31 of the Children Act

The law

[17]Section 31(1) of the 1989 Act empowers a court to make a care or supervision order when the criteria in subsection (2) are met. Section 31(2) provides:
“(2) A court may only make a care order or supervision order if it is satisfied— (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control.” (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control.”
[18]As with any statutory power, the fact that a power is, in principle, engaged does not mean that it should, in fact, be invoked. Put another way, just because a care or supervision order could be made does not mean that it should be made.[19]Whether to make a care order, and if so under what conditions, are questions to be determined by reference to the welfare of the children involved. The welfare of any child in relation to whom a section 31 order could be made is the court’s paramount consideration. To that end, section 1 of the 1989 Act establishes the paramountcy principle: when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration: see section 1(1). There are additional statutory considerations contained in section 1, in addition to the welfare checklist: see section 1(3). The provisions are well known. I need not set them out.[20]The 1989 Act must be applied consistently with the requirements of the European Convention on Human Rights. Orders under the Act must be made in a manner consistent with the requirements of the Convention, in particular the proportionality requirements of Article 8 (private and family life): see Re B (A Child) [2013] UKSC 33 at para. 73, per Lord Neuberger, and at para. 194 per Lady Hale. The same principles apply in relation to placement orders under the Adoption and Children Act (“the 2002 Act”), as set out below.

Placement orders

[21]Placement orders are made in accordance with section 21 of the 2002 Act. The power to do so is engaged on a number of bases. Relevant to these proceedings is the criterion in section 21(2)(b), which is engaged when the threshold criteria in section 31(2) of the 1989 Act are met.[22]Section 21 provides, where relevant: “21 Placement orders”(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.(2) The court may not make a placement order in respect of a child unless— (a) the child is subject to a care order, (b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c) the child has no parent or guardian.(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied— (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent's or guardian's consent should be dispensed with. This subsection is subject to section 52 (parental etc. consent).” (a) the child is subject to a care order, (b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c) the child has no parent or guardian. (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent's or guardian's consent should be dispensed with.[23]The question of whether a parent or guardian’s consent should be dispensed with under section 21(3)(b) is to be determined by reference to what the welfare of the child “requires”: see section 52(1)(b). The term “requires” connotes a test of necessity, as set out below. Whether the child’s welfare “requires” the consent of his or her parents to be dispensed with is a question to be addressed by reference to the paramountcy principle as established by the 2002 Act, namely by reference to the child’s welfare “throughout his life” (see section 1(2)). Section 1(4) contains an adoption-specific welfare checklist.[24]The welfare checklist principles must be applied in accordance with the relevant caselaw. The test for severing the relationship between parent and child is thus very strict. Only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do, may such an order be made. In Re B, Lord Wilson summarised the principles in these terms, at para. 34:
“The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word ‘requires’ in section 52(1)(b) ‘was plainly chosen as best conveying...the essence of the Strasbourg jurisprudence’ (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125).”
[25]In Re B-S [2013] EWCA Civ 1146 Sir James Munby, P, commented on Re B in the following terms, at para. 22:
“The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are ‘a very extreme thing, a last resort’, only to be made where ‘nothing else will do’, where ‘no other course [is] possible in [the child's] interests’, they are ‘the most extreme option’, a ‘last resort – when all else fails’, to be made ‘only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do’: see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.”
[26]Re B-S goes on to emphasise the importance of proper evidence and analysis from the local authority and the guardian. Such evidence must address all the options which are realistically possible and must contain analysis of the arguments for and against each option (paras 33 to 40). The court emphasised that judgments must be adequately reasoned (paras 41 to 46), looking at all realistic options in the round, without conducting a linear analysis. There must be a global, holistic evaluation: para. 44. The need for such rigorous analysis reflects the importance of exercising this most draconian and permanent power of the state in a manner consistent with the principle of proportionality and the domestic and Strasbourg case law.

Other legal considerations

[27]The burden of proof is on the local authority to establish its case to the balance of probabilities standard.[28]In these proceedings, there are few disputes of fact. Two minor points in the local authority’s welfare findings document are disputed by the mother. However, as will be seen, the mother does not so much dispute the factual basis for those assertions, but rather seeks to contextualise them.

The hearing

[29]The hearing took place on a hybrid basis from 23 to 25 June 2025.[30]Ms A attended part of the first day of the hearing in person. She found doing so incredibly difficult and very upsetting. I sought to do all I could to accommodate her needs during the hearing, but ultimately, she decided that remaining in the court room in person was too much for her. For the remainder of the first day, she observed remotely from a room in court, accompanied by Ms F, the Guardian. For the second and third days she attended remotely from home.[31]Arrangements were made for Mr B to attend remotely from prison. It was identified a long time before the final hearing that the prison link would not be available on the afternoon of the second day, and the parties agreed that the proceedings could be concluded without sitting on that afternoon. I was told that Mr B refused to leave his cell each day. Ms Noblet did not seek to persaude me not to proceed in his absence. I agreed that it would be fair to proceed. Mr B’s absence from the proceedings was voluntary, and in any event, Ms Noblet was able fully to represent his interests.[32]All other aspects of the proceedings took place in person.[33]I reserved judgment.

Adjournment application

[34]Ms McNestry applied on behalf of Ms A to adjourn the proceedings on the first day. This was because the Agency Decision Maker (“the ADM”) was not available to attend the final hearing despite the parties having been notified by Ms A that her attendance was required. Ms McNestry wanted to cross-examine the ADM to challenge her approval of the ratified plan for adoption. Ms A’s case was that the local authority had not explored, and the ADM had not appreciated, the willingness of the current agency foster carers for X and Y to act as long-term foster carers for them. While that had been a recent development post-dating the ADM’s analysis, the plan for adoption had nevertheless been ratified on the incorrect assumption that there were no alternative placements. In fact, the current foster carers were one such viable placement. Ms McNestry submitted that the ADM’s evidence on this issue needed to be tested under cross-examination to ensure that the hearing was fair.[35]Mr Cottrell and Mr Nixon opposed the application. Ms Noblet and Ms Baxter were neutral.[36]I refused the application. I ruled that the ADM had considered the prospect of long-term fostering. The fact that it had subsequently transpired that there was at least one couple, namely the current agency foster carers, who would be willing to be assessed to perform that role was not a sufficient basis to undermine the ADM’s analysis and written evidence. A fair hearing was possible without the ADM because her presence was not required to probe the local authority’s case concerning the principle of long-term foster care. I ruled that I would permit the fostering social worker to give evidence, which would enable the parties to explore the extent to which the current foster carers’ views had been canvassed in relation to this issue. I said that I would keep the position under review in light of the evidence at the hearing. In the event, Ms McNestry expressly did not invite me to revisit this issue in her concluding submissions.

The witnesses and other evidence

[37]It is not my intention to repeat back to the parties the entirety of the evidence I heard over the course of this trial. What follows is a brief summary of the evidence of each witness; I will refer to additional aspects of their evidence to the extent necessary to reach and give reasons for my findings in due course.[38]I heard from Ms G, the allocated social worker. She engaged in detailed written analysis of all aspects of the family dynamic in these proceedings, including parenting and sibling assessments, statements, final care plans, and updating final care plans. She adopted her reports and statements as her evidence in chief.[39]In additional evidence in chief, Ms G addressed what she perceived as the inadequacies of long-term fostering. She contrasted the realities of a life in care, under a long-term fostering arrangement, with the likely security and stability of a forever family under adoption orders. Long-term foster care would entail a complex and high level of pressure, plus risk assessments in relation to Mr B, who is known to be dangerous. By contrast, adoption would provide certainty and security throughout the children’s lives.[40]Under cross-examination by Ms McNestry, Ms G was challenged on the basis that her written evidence was not as detailed as her oral evidence in chief concerning the disadvantages of long-term foster care. She resisted the suggestion that she had only worked up such additional reasoning in response to the current foster carers expressing a willingness to care for X and Y on a long-term basis. Ms G had always considered those broader factors, she said. However, the identity of prospective long-term foster carers would not be addressed in a care plan; there is a matching process.[41]Ms G was also cross-examined about the impact on all three children through Z being placed with Mr C, effectively splitting the family. In response, she explained the life-story work that would be necessary with Z to explain what had happened. Splitting the siblings in this way was necessary in the interests of the safety of all three children. Mr B was dangerous. X and Y’s care plan included indirect contact with their parents, but direct contact was too dangerous for fear of revealing their location to Mr B. He posed a real threat to them.[42]I heard from Ms R, a social worker with the fostering agency. She adopted her statement dated 23 June 2025. Ms R was aware that the current foster carers were willing to explore long-term foster care. They had formed an attachment to the children, but the extent of that attachment, and any prospective changes to their role, had not yet been explored. Their next review was not due until November 2025. For long-term foster carers, there was a lengthy approval process, examining the needs of the children, the geographical area, their capacity and support, as well as other factors. That process would not commence until after the review in November 2025. Under cross-examination, she accepted that she had not discussed the possibility of the current foster carers being approved as special guardians.[43]I heard last from Ms F, the children’s guardian. She adopted her analysis including her final report dated 17 June 2025, which supported the local authority’s care plan for all three children. Ms F said that she had not changed her view about the care plans for X and Y in light of the prospect of the current foster carers seeking to be approved as long-term foster carers.[44]Under cross-examination, Ms F accepted that her final analysis could have focussed more on long-term foster care but stressed that her view remained the same. The best plan for permanency was one of adoption. Long term foster care would expose X and Y to long term uncertainty. Such placements breakdown more frequently than adoptive placements. Ms F considered that Ms G had considered all relevant factors in her evidence and was satisfied that the factors in her final analysis, while briefly expressed in places, were the product of lengthy and detailed analysis, although could have been more detailed, and raised the question as to whether, in future cases, a more thorough approach should be adopted.[45]Ms F also accepted that the process of transitioning from short term foster carers would be disruptive for X and Y, given their current bonds with Z and their mother, but considered that new bonds could be formed with their adoptive placement. Direct work with the children would be important. There would be a sense of loss for Z; it would be incredibly sad for her, but she has an incredibly supportive family through Mr C. There should be fortnightly contact with Ms A before a transition plan commences.

Submissions

[46]For the local authority, Mr Cottrell commended the local authority’s care plans to me. It was not necessary for Ms G’s analysis to engage with the identity of prospective long term foster carers. There had never been a direction by the court that the current foster carers should be considered either as long- term foster carers or special guardians. Mr Cottrell also submitted that the 1989 Act prevented the current foster carers from being appointed as special guardians without the consent of the local authority.[47]Ms McNestry’s submissions criticised the local authority’s analysis under Re B-S for its failure properly to address the prospect of long-term fostering. She contended that Ms G’s analysis had not reached the depths necessary to conduct a Re B-S-compliant analysis in the context of considering a care plan for adoption. Long term foster care was not properly considered until it was raised by Ms C in her statement.[48]Ms McNestry accepted that the term “nothing else will do” is not a substitute for a proper welfare evaluation, but in the circumstances of these proceedings, the local authority had not undertaken a sufficient analysis. The court cannot exclude the possibility that the current foster carers could have been positively assessed, either as long-term foster carers, or prospective special guardians.[49]In Ms McNestry’s submission, there were several reasons why the local authority’s plan was flawed.[50]First, adoption not a plan free from risk. Many of the disadvantages of long-term foster care relied upon by the local authority would apply with similar if not equal force in the context of a plan for adoption. For example, while Ms G contended that a long-term foster placement would entail risks that the children would be contacted by Mr B, or otherwise be at risk from him, that is equally a possibility with placement for adoption. The local authority would be unlikely to reject prospective adopters simply on account of them being located in the North East. In any event, X and Y are currently placed in the region. The toll on the children from an adoptive placement breaking down would be significant, and the children may well end up in long term foster care by default.[51]Ms McNestry submitted that the court had no evidence pertaining to prospective adopters, and therefore could have no confidence that the siblings would be placed together.[52]Secondly, the impact on the sibling bond. This has been underestimated by the local authority. It was not addressed in the final social work evidence template, yet the siblings have frequent contact. C has something of a caring role for her younger sister. She has lived with her since birth. The impact will be grave and enduring throughout the lives of all three children.[53]Thirdly, permanency and stability can be provided by a long-term foster placement, especially where, as here, the current foster carers are willing to assume that responsibility.[54]Fourthly, the emotional impact on the children. Y became emotionally dysregulated upon being placed with the current foster carers. He has since formed an attachment. The local authority have failed to address the attachment of the children.[55]Ms McNestry submitted that the level of proposed post-adoption contact between X and Y and Ms A was insufficient. The local authority’s care plan is for indirect contact only, with a phased transition plan, which would plainly be inadequate. There is no evidence that direct contact, which is ongoing at the moment, would entail the claimed level of risk relied upon by the local authority. The court should make an order for direct post-adoption contact between X and Y with Ms A under section 26(4) of the 2002 Act, and for X and Y to have direct contact with Z. Ms A’s contact could continue at least monthly, if not fortnightly, until a placement is identified, given the bond between Ms A and X and Y.[56]As for Ms A’s contact with Z, that will be a matter for Mr Riddell; Ms A does not seek a spend time with order. Mr C is willing to support such contact between Ms A and Z; they have contact twice weekly at present. The family are willing to promote contact at least once a month.[57]Ms McNestry submitted that it was vital for all three children to maintain sibling contact. In the absence of an order under section 26(4), this could not be guaranteed. I should make such an order.[58]In relation to the application for a declaration of parentage, Ms McNestry’s written submissions relied on section 55A of the Family Law Act 1986 (“the 1986 Act”). Under subsection (5), the court may decline to hear the application if it considers that the determination of the application is not in the best interests of the child. Mr B has no relationship with X. He has thirty children. It would be harmful to her welfare to have to process the reality of having thirty siblings. In any event, the local authority will undertake life story work with X to help her understand her heritage. Mr B does not need a declaration of parentage to ensure that X one day knows that he is her father. However, in the alternative, should I make the declaration, there should be an order clarifying that Mr B does not have parental responsibility for X.[59]As to the disputed welfare allegations (para. 2(e) and (f)), those should be placed in context, Ms McNestry submitted. Where Ms A did not attend family time, it was to protect the children from her dysregulation. As to failing to engage consistently with professionals, she is of no fixed abode. When she moved into the refuge, her GP changed, which led to delays in her prescriptions. In turn, she struggled to engage with all parenting assessment sessions.[60]Ms Noblet confirmed that Mr B does not oppose the local authority’s care plan for X and Y. He accepts that long term fostering would not provide the security for the children into the future. As for the declaration of parentage, Ms Noblet said that while the court may well justifiably be critical of Mr B for not attending the final hearing, that is irrelevant to the declaration of parentage. Section 55A(5) of the 1986 Act merely prevents an application for a declaration from being heard on welfare grounds, as has already happened here. It does not provide a means to determine applications on welfare grounds. Nor is this a case where it would be manifestly contrary to public policy to make a declaration (see section 58(1)).[61]For Mr C, Ms Baxter emphasised the positive care that Z is enjoying under his care. She is thriving. She is a transformed child. So much is clear from a letter that she, Z, wrote to me, which is featured within the guardian’s final analysis. Mr C wishes to work constructively with the local authority to promote contact between Z and Ms G, and the remaining siblings, but does not want to be bound to a particular approach in doing so, to avoid disappointment for children in situations where, as in the past, contact with Ms A has been unable to go ahead.[62]For the Guardian, Mr Nixon emphasised the centrality of the welfare of the children, and in the case of X and Y, throughout their lives. As for the prospect of long-term foster care, Ms A’s motivations for advancing that prospect are based on the potential future possibility that one day her children may be rehabilitated to her. Sadly, that would not be possible. While the Guardian’s written analysis concerning long term foster care could, he accepted, have been more robust, Ms F had fully considered all relevant factors in her oral evidence. Her evidence as to why the current placement was not a realistic long-term option was sound, and the focus should be on the principle of long-term foster care, rather than on particular prospective carers. A section 26 order was not needed for ongoing contact.

Analysis of the evidence

[63]This is a case where most facts are agreed. The oral evidence I heard primarily concerned probing and testing the local authority’s care plan, and the relative strengths and weaknesses of its proposed approach, and the extent to which it had explored all options.[64]There is one significant point that is abundantly clear from the evidence and also from the demeanour and presentation of Ms A: her love for her children. She is devoted to them and devastated at the prospect of losing them. She clearly wishes to be able to provide all three of her children with the loving and secure environment they deserve. She has taken child-focussed decisions in these proceedings by accepting that the threshold criteria are established, and by accepting that she cannot care for her children at this time. Even seeking long term foster care for X and Y, and agreeing to the child arrangements order being made in relation to Z, is child-focussed. It is a position that seeks to reconcile her deep desire to maintain a relationship with all three of her children, while keeping them safe. I wish to commend Ms A in the strongest terms for this approach.[65]I found all three witnesses to be honest and credible. Ms G’s oral evidence demonstrated her in-depth understanding of the strengths and weaknesses of the two realistic options, long term foster care or placement for adoption. Her oral evidence was, as she accepted, more detailed and comprehensive than her written analysis, especially in relation to long-term fostering. I accept her explanation under cross-examination that where her balance sheet analysis lacked some of the depth and insight demonstrated by her oral evidence, that was on account of her brevity of expression in her final evidence, not because the points did not occur to her previously.[66]The evidence of Ms R was straightforward and credible. The same is true of Ms F’s evidence. She accepted that aspects of her analysis could be in further depth, in particular her scrutiny of the local authority’s balance sheet assessment.[67]I should address Ms McNestry’s cross-examination of all three witnesses about the prospect of the current foster carers being assessed as special guardians. I accept that a special guardianship order would be a more secure arrangement than long-term foster care. However, the strong impression that I have, both from the oral and written evidence of Ms G (see her statement dated 8 July 2024), and the evidence of Ms R, is that the current foster carers’ willingness extended to being willing in principle to be assessed as long term foster carers specifically, rather than special guardians. Ms F said that it would be atypical to invite foster carers to assume the role of special guardians, since that would be tantamount to inviting the foster carers to give up their jobs, and perform long term, and for no remuneration, a role for which they are currently remunerated. I accept her evidence on that issue. Had the foster carers sought to put themselves forward on that basis, they could have done. They have not. At its highest, the foster carers’ willingness to be assessed as long-term foster carers simply means that there is at least one couple that is willing to be assessed for the role of long-term foster carers, as part of a broader matching process that would be required in the event that long term foster care is the plan that I approve. It does not take matters much further than that.[68]There are two disputed points in the threshold, as set out above, but I did not hear evidence from Ms Grant on those issues, and the factual contentions within them are well established by the documentary evidence before me. Indeed, Ms McNestry did not seek to persuade me that the disputed allegations were without evidential foundation, but rather contended that they should be viewed in their context, as set out at para. 59, above. The allegations themselves are established to the balance of probabilities standard by the documentary evidence. Para. 2(e) is established by the chronology at page C208 of the bundle. Para. 2(f) is established by the details contained in Ms A’s parenting assessment at pages C154-156 of the bundle. I accept, as did Ms G in her evidence, that Ms A withdrew from some family time sessions because of her emotional presentation. Doing so was a child focussed decision. I also accept that the reasons for Ms A’s inconsistent engagement with professionals was, at least in part, due to her difficult life circumstances at this time. However, the reality is that she did have inconsistent attendance at family time, and she did fail consistently to engage with some professionals. I find these disputed points are established.[69]I therefore find that all threshold and welfare allegations are established. The section 31(2) criteria in the 1989 Act are met in relation to the care provided to X, Y and Z by Ms A and Mr B. The realistic options considered Child arrangements

The realistic options considered

[70]The only realistic option in relation to Z is a child arrangements order in favour of Mr C. No party invites me to approach this aspect of the case in another way. It is consistent with the statutory presumption in section 1(2A) of the 1989 Act that the involvement of a child’s parents in the life of the child concerned will further her welfare. It is consistent with Z’s wishes and feelings, as demonstrated by the letter she wrote to me via the Guardian. Her physical and emotional needs are met through the care afforded to her by Mr C and his partner, and she is enjoying sibling contact, and contact with her mother at present, and will be able to do so (albeit to a lesser extent if I approve the care plan for X and Y, see below). She has suffered great harm previously, but this option will keep her safe. Mr C is capable of providing excellent parenting skills, and facilitating contact as required with Ms A.[71]The overall care plan will result in a reduction in Z’s contact with X and Y, but it will not be extinguished; I will consider these factors below.

X and Y: long term foster care

[72]Long term foster care would provide X and Y with a safe and protective environment and continued contact with her birth family. They could be placed together, and would be able to have ongoing, direct contact with Z as well as Ms A. It would not entail the permanent, life-long severing of family life that characterises adoption but would provide an ongoing framework for family time and the possible rehabilitation of the children to Ms A’s care. That is because it would, in principle, be open to Ms A to apply for the care order to be discharged. That would provide her with a degree of hope for the future, and possibly the motivation to change to enable the care order to be discharged, or, at least, the care plan to be varied.[73]In contrast to post-adoption sibling contact (which is proposed to take place twice annually between Z, on the one hand, and X and Y, on the other), long term fostering would allow the sibling group to continue to have contact with each other. Z has formed bonds with her younger siblings. She is their protective big sister. Adoption would fundamentally change that relationship. Long term foster care would not necessarily do so.[74]There is at least one couple, the current short term foster carers, who are willing to be assessed for long-term fostering of X and Y. If their application is successful, they would be able to continue to provide X and Y with a loving, stable home, which could extend throughout their childhood, provided notice is not given. In turn, that would mean that X and Y would not need any transition planning to an adoptive placement and could, quite literally, stay where they are. This would avoid the trauma that will inevitably follow from any move in placement; Y became dysregulated upon being moved to this placement initially. While he has now settled down, a further change would be detrimental to his welfare.[75]Against those considerations, Ms G and Ms F stressed a range of reasons why, in their opinion, long term fostering was inadequate. In her evidence, Ms G painted a vivid picture of long-term life as a looked-after child. The local authority’s statutory duties would entail six-weekly visits, care team visits, regular reviews, and annual medicals as a bare minimum. Day to day life would involve risk assessments, which, in the circumstances of this case and Mr B’s criminal history and associates, and the large number of children that he has, would be likely to be complex. There would need to be sophisticated safety planning. X and Y’s friendships would be subject to scrutiny by social workers. Everyday parts of childhood, such as sleepovers, would become a risk-assessed, regulated activity. There would be care planning meetings which, in time, each child would have the option of attending; the mere fact of having that option could be a stressful factor in the life of any young person. I accept Ms G’s evidence that these arrangements would amount to a complex and high level of pressure for a young person. They may get used to it, but it would be a frustrating life to live. I accept Ms G’s concerns that the restrictions that would be needed, particularly in the circumstances of X and Y, would be likely to mean that their enjoyment of childhood may well have significant limitations. The protective environment that life as a child in care would entail would bring some advantages, of course; but it is the case that such protections are necessary not for their own sake, but because of the enhanced risk profile that looked after children otherwise present.[76]Long term foster care is inherently precarious. A placement may be terminated on 28 days’ notice. X and Y’s first placement in these proceedings was terminated by the foster carers on account of the children’s links to Mr B. Long- term fostering arrangements do break down. In time, that would lead to the children finding it harder to form attachments. Their lives would be conducted on the footing that life could change significantly at short notice. I accept the evidence of Ms G and Ms F that long term foster care is less stable than adoption.[77]While a long-term fostering arrangement may well lead to some life-long bonds between child and carer, such long-term bonds are less likely to match the depth and endurance of adoption. As Ms G put it, long term foster care is not the same as having a parent you can call in a crisis ‘aged 35’. I take that to mean the enduring mutual reliance between parents and their adult children is less likely to be present between long term foster carers and those they looked after. While bonds do inevitably form between long term foster carers and those they look after, the reality is that the foundation of the relationship was built on a professional, remunerated and terminatable obligation.

Adoption

[78]Adoption for X and Y would provide them with a permanent, life-long, forever family. It would provide them with stability, security, and the prospect of long-term and secure relationships with parents which would be matched through a careful and rigorous selection process. The local authority would place both children together, which would thereby maintain the sibling relationship that they have together, as attested to by the sibling assessment. A successful adoption would provide the children, individually and together, with the foundation for a life-long support network. It would provide them with precisely the relations to call ‘aged 35’ in a crisis for help, support and encouragement.[79]Once the matching and placement process has concluded, adoption would entail none of the invasive oversight by a local authority that would characterise long term fostering. Each child would be the responsibility of their new parent(s), rather than being subject to the corporate parental responsibility of a local authority. Their childhoods would be able to acquire a degree of normality that they have not previously enjoyed; by normality, I mean free from the serious harm that engaged the section 31 threshold, prior to these proceedings, and the intensive oversight and regular assessments that accompanies their time in agency foster care at the moment.[80]In the circumstances of these proceedings, X and Y would be able to be provided with a placement away from the North East. That is significant due to the risks posed by Mr B and his associates, entailing a degree of safety that could not be provided by long-term foster care in the region. While I accept Ms McNestry’s submissions that, thus far, Mr B has not sought to intimidate or otherwise jeopardise the current placement, the reality is that the placement details are confidential from Mr B and he has not had that opportunity in the relatively short time that has elapsed. With time, the risk in the region from Mr B would increase, especially in the event that sibling contact continued under the auspices of a long-term foster arrangement. An adoptive placement away from the region would significantly reduce the possibility of the children facing harm on that account.[81]The age of X and Y is such that an adoptive placement is more likely to succeed, although I accept that Y’s age will mean that his memories of life with his birth family, and the attachments he formed to his parents, to Z and to the agency foster carers mean that there will be a degree of trauma at the outset of the placement. It could go on for longer.[82]Factors militating against adoption include the reality that adoptive placements do break down, as Ms McNestry submits. There is no guarantee of success. Adoption is not a panacea. The attachment of adopted children to their birth lives, coupled with the trauma many have experienced, is such that the success of an adoptive placement is not a foregone conclusion.[83]Adoption is a most draconian interference in the lives of the family concerned. It would effectively sever the links between Ms A and Mr B and their children, and significantly weaken the links X and Y enjoy with Z. This will have a profound impact on both Ms A and Mr B, as well as the children themselves, albeit they are at an age where with appropriate life story work they would be likely to be able to adapt. Even Mr B, a hardened and violent criminal, became upset at the prospect of two of his children being adopted, when Ms G visited him in prison to explain the plans. His reaction speaks volumes about the draconian nature of the power. It is hardly surprising he reacted in that way. The same may be said of Ms A. Adoption is hugely costly for the parents and family members left behind. This is a very real factor.

Final analysis

[84]I turn now to addressing both realistic options in relation to all three children, in the round, by reference to the welfare checklists in the 1989 and 2002 Acts. References to legislation are to the relevant checklists.[85]In relation to X and Y, I acknowledge Ms McNestry’s criticisms of the local authority’s Re B-S analysis, and of Ms F’s approach to it. I do not seek to be critical of either Ms G or Ms F, but rather accept that the depth and quality of the analysis that each demonstrated the witness box went further than their written analysis. I do not consider, however, that that renders the overall process unfair, since their evidence was clear, and Ms McNestry was able to address me in powerful terms about both the weaknesses in the local authority’s approach, the strengths of long-term fostering, and the weaknesses of adoption. I have enough information to make a decision.[86]The care plan is for X and Y to be placed together. Their bond as siblings is strong. This will be able to continue. Y is slightly older, which makes adoption a slightly riskier prospect, given his memories of his original family. In turn, that entails a degree of risk to X, since she will be influenced by her older brother throughout her childhood and their lives. These are factors to hold in the balance.[87]I acknowledge that long term foster care for X and Y would bring benefits, as I have set out above. Those attract weight. But set against those factors are the inherent instability of a long term foster placement, the oversight and stigma of being a long term looked after child, and the sense of not belonging. By contrast, adoption would provide a life-long forever family in a secure and safe environment that would be characterised by stability and certainty in a way which could not be matched by long term foster care. That is a significant, and positive, welfare factor throughout the entirety of X and Y’s lives, consistent with section 1(2) of the 2002 Act. The needs of these two children are to move on from the instability and trauma that has characterised much of their early lives (section 1(4)(e), to be provided with a permanent, life-long home and family (section 1(4)(b)).[88]I accept that adoption would entail a double sense of detachment for X and Y (section 1(4)(b)). The direct contact they enjoy with their mother, while presently in a state of flux, would reduce to indirect letterbox contact. That will inevitably be very hard for the children, especially Y, given his age, but also X. While Ms A has struggled, for the reasons emphasised by Ms McNestry, to engage consistently with family time, it nevertheless has taken place. X and Y children see their mother and have been seeing their mother. This would stop. They would also have to move on from their current foster placement, in which they are settled and have formed a loving bond with their foster carers; the bond is mutual, such that the current carers would be willing to be assessed as long- term foster carers. X and Y will also see Z less than may otherwise be the case, under the supervision of Mr C; the care plan is for twice yearly contact. The sibling group in its current form would be broken, but relationships would not cease altogether.[89]There are very real safety fears in relation to Mr B and his long-term impact on the safety of any long term foster placement (section 1(4)(e). There are concerns that during the criminal trial his family and associates mounted an online campaign of harassment against Msa. A. Ms A’s windows were broken shortly before Mr B was sentenced. Ms G’s final analysis describes the hostile and volatile nature of Mr B’s broader family and associates. He shows no remorse for his guilt and blames Ms A for his situation and that of his children. Of course, I accept Ms McNestry’s and Ms Noblet’s submissions that there is no direct evidence that Mr B has engaged in activities of this sort, but at this juncture I am concerned with prospective risk. I accept that any placement of X and Y would need to entail significant breaks and a complete severing of direct and indirect relations with Mrb. B. Long-term fostering would not achieve that objective anything like as effectively as the plan for X and Y to be adopted. Adoption has the strongest chance of breaking those links.[90]While a break with the birth family of X and Y would thus entail a sense of loss for X, Y and Z, in addition to Ms A and Mr B, there are positive and negative features to those consequences.[91]For X and Y, becoming adopted persons (section 1(4)(c)) will both entail a sense of loss, but will also provide them with a strong possibility of having something of a fresh start on a far more stable foundation than they have ever known, or than they could ever have in long term foster care. Their new, forever family will provide life-long bonds. When aged 35, as Ms G put it, they will have someone to call in a crisis in a way that is far less likely in the event of long-term foster care.[92]As to the current foster carers’ prospective willingness to be long-term foster carers, the identification of long-term foster carers is always subject to a matching process. That process would be conducted under the authority of a care order, but it would not be micromanaged by it. I accept the evidence of Ms G and Ms R that the matching and approval process is a significant unknown quantity at this stage. The current agency foster carers are not employed by the local authority, and their home would be unsuitable for the two children in the long term, since X would need her own room when she gets older. At its highest, therefore, the current foster carers’ willingness to be assessed means that there is, in principle, one couple who would be willing to be assessed to be approved for long term fostering. Whether they would be matched is an entirely different matter. I respectfully consider that their willingness to be assessed as foster carers, rather than special guardians, means that their long-term care would still feature the inherent weaknesses that characterise long-term foster care, even if they were matched.[93]Drawing this analysis together, I have come to the view that for X and Y, both individually and collectively, adoption is the better option, by far. Adoption provides a far stronger prospect of the welfare needs of these children being met at this time, and throughout the entirety of their lives. It will provide certainty and security in a way which long term fostering could not. It will provide safety from Mr B and his associates in a way which long term fostering would not. The sibling group relationship, while facing significant changes, would still exist. Ms A would be able to pursue letterbox contact with her children, which would meet their welfare needs in a safe manner reflecting the reality of the unfortunately hostile and volatile influence of Mr B. I appreciate that that is likely to be little comfort for Ms A, for whom this news will be devastating, but it is unfortunately the only way to meet the long-term welfare needs of X and Y.[94]Ms A does not consent to the making of a placement order. I can only make the order by dispensing with her consent. My analysis above demonstrates that the welfare of X and Y “requires” her consent to be dispensed with. There is a strict test of necessity which underpins the application of what the welfare of the children “requires”, by reference to the overriding requirements of the children’s welfare. The consequences of not making a placement order would be to consign X and Y to the uncertain future of long-term fostering, possible risk from Mr B, an absent mother and father, and no forever family. By contrast, a placement order will bring the joyful certainty of a new forever family, and a secure environment and platform from which X and Y may approach the remainder of their lives. The welfare of X and Y, both individually and together, demands that I make an order for their placement for adoption, when considering the two realistic options, in the round. Making such an order is a proportionate step to take for the purposes of Article 8 of the European Convention on Human Rights, bearing in mind the consequences to X and Y of not doing so. Nothing else will do.[95]Mr B does not actively oppose the making of a placement order, but he does not consent to it. For the reasons set out above, I dispense with their consent. I make the placement orders. I endorse the local authority’s care plan in relation to each.[96]I do not consider that a section 26 order is necessary to promote post-adoption contact between Ms A and X and Y, or between X and Y with Z. I am satisfied that the local authority’s matching process will seek to match X and Y with adopters who would be willing to enable and facilitate such post adoption contact to take place; on a letterbox basis between Ms A and X and Y, and through Mr C in relation to sibling contact with Z.

Declaration of parentage

[97]I make a declaration of parentage in relation to Mr C’s fathership of Z.[98]Ms A opposes Mr B’s application for a declaration of parentage in respect of X. I am not persuaded by her submissions. Mr B already has parental responsibility for Y, and the local authority will complete life story work with X to help her understand her heritage in any event. There are no welfare benefits to X to refusing this application. This is not a case where it was not in the best interests of X to hear the application (see section 55A (1) of the 1986 Act); I have already heard the application. Mr B is aware of his parentage of X and is named on Y’s birth certificate. Despite Mr B’s criminal history and appalling record of abuse against Ms A, this is not a situation where it is manifestly contrary to public policy to make the declaration (section 58(1)). Mr B is the father of X and Y. There is no welfare or other basis for this court to decline to endorse the factual reality of his fatherhood of X as well as Y. I make the declaration. I do so on the express basis that any order making the declaration expressly states that he does not have parental responsibility for her.

Conclusion

[99]In summary, I make the following orders: i) I grant care and placement orders in relation to X and Y, placing them in the care of the local authority and making placement orders for adoption, dispensing with the consent of Ms A and Mr B in order to do so. ii) I make a child arrangements order for Z to live with Mr C. iii) I grant a declaration of parentage of Mr C’s parentage of Z. iv) I grant a declaration of parentage in relation to Mr B’s parentage of X.[100]I wish to conclude with some words about Msa. A. She has suffered the most appalling treatment at the hands of Mrb. B. She has engaged with these proceedings in a way that is commendable, despite the very real difficulties in doing so she experienced. In addition to the trauma and suffering she has endured, she now faces the double indignity of losing her children because the trauma which she has experienced will have contributed to her inability to provide the children with a safe environment that is free from significant harm. That is the tragic reality of the human suffering behind these proceedings. Ms A’s love for her children is evident now, and I am sure that it will endure, despite the orders I have made in the welfare interests of the children.[101]That is the judgment of the court.

order

Z